From the Penal Code and into the fire that is the Anti-Homosexuality Act – queer Ugandans have had a long fight on the streets, in their parliament and now in the courts.
The High Court judgment in Jacquaeline Kasha Nabageser and other v Attorney General and another [file] illustrates the danger law, and the courts who interpret it, can pose to minorities. Below is a look into the judgement and an evaluation of the contradictions inherent in its reasoning.
Freedom and Roam Uganda (FARUG) organised a workshop at the Imperial Resort Beach Hotel Entebbe. The workshop was to “train and equip participants with project planning, advocacy, human rights, [and] leadership and business skills.” Rev. Simon Likodo, in his capacity as the Minister of Ethics and Integrity, ordered the cessation of the workshop on the basis that it was an illegal gathering of homosexuals and in contravention of the ‘Unnatural offences’ provision in Article 145 of the Penal Code.
The organiser, Jacqaeline Kasha Nabagesera and three participants, Julian Pepe Onziema, Frank Mugusha and Geofrey Ogwaro, challenged the Minister’s actions on several bases, one of which was that the Minister’s actions violated their constitutional rights to freedom of expression, political participation, freedom of association and assembly, and equality before the law.
In rejecting this challenge, Justice Stephen Musota relied almost exclusively on the basis that the claimed rights could be–
“validly restricted in the interest of the wider public as long as the restriction does not amount to political persecution and is justifiable, acceptable in a free and democratic society.”
The Justice further buttressed his decision by pointing to Article 27 of the African Charter of Human and People’s Rights (ACHPR). He stated “it is trite law that any rights must be exercised within or according to the existing law.”
The problem with the judgment lies in its lack of definition of the content of “public interest”. The judgment seems to take the public’s interest as a homogenous obvious entity; he does not interrogation the source of this public interest. There are two startling concerns.
First, the judgement does not attempt to find a balance between the competing interests presented by this case. The judge does not attempt to balance the claimed rights against their restriction by government in the name of “public interest”. He does not interrogate competing interests.
Important questions – such as: what are the boundaries of the claimed rights; how are courts to balance the murky ground between human rights claims; and the states power to limit those rights – are not fully canvassed. In short, the judgment does not grapple with the underlying ideological questions: How far can government restrict a citizen’s rights in the name of the ‘public’s interest’ and how do courts balance these competing interests.
Second, the judgment does not explore the second part of the limitation clause contained in Article 43(2)(c) of the Ugandan Constitution, which provides,
“Public interest under this article shall not permit … any limitation that is beyond what is acceptable and demonstrably justifiable in a free/democratic society, or what is provided in this Constitution.”
The second part of this limitation, to my mind, requires a court to enquire into the permissibility of the rights limiting conduct.
Public interest
Article 43 of the Ugandan Constitution allows for the limitation of a right where a person’s enjoyment of the rights and freedoms prejudices the rights and freedoms of others or public interest. The Article further limits the latter ground of limitation by providing that–
“public interest shall not permit … any limitation that is beyond what is acceptable and demonstrably justifiable in a free/democratic society…” (My emphasis)
In the constitutional appeal Charles Onyango Obbo and another v Attorney General [file], the Supreme Court noted that when considering limitations one should note that the primary or dominant objective of the Constitution is the protection of guaranteed rights. Limitation of rights is a secondary objective given rise to by exceptional circumstances.
Writing for the majority, Mulenga JSC noted that the grounds of limitation should present circumstances where actual mischief or danger to the rights of others or to public interest is present. He held
“The clause does not expressly or implicitly extend to a third scenario, where the enjoyment of one’s right is “likely to cause prejudice”. The danger in such circumstances is proximate to the act of the expression, and therefore the exercise of the right ‘prejudices’ the public interest.”
Acceptable and demonstrably justifiable
The Supreme Court went further to explore the meaning of the “objective standard” set out in clause 2(c) of Article 43: every limitation must be acceptable and demonstrably justifiable in a free/democratic society.
The court held that the clause clearly presupposes the existence of universal democratic values and principles, to which every democratic society must adhere. Thus, laws or state actions which seek to limit constitutional rights are not valid under the constitution, unless they are in accordance with these universal democratic values and principles.
Agreeing with a dictum of the Supreme Court of Zimbabwe set out in Mark Gova & Another v Minister-of Home Affairs & Another [file], the court held that for a limitation to be justifiable in a democratic society, it must stand to the following criteria:
- The legislative objective which the limitation is designed to promote must be sufficiently important to warrant overriding a fundamental right;
- The measures designed to meet the objective must be rationally connected to it and not arbitrary, unfair or based on irrational considerations; and
- The means used to impair the right or freedom must be no more than necessary to accomplish the objective
The criteria above is directed towards protection from arbitrary and overarching limitations justified on the basis of “public interest”. From this, one can conclude that under the Ugandan Constitution: rights limitations must not erode the right being limited so as to render the right obsolete; the means of limitation must follow due process; and the state actor enforcing the limitation must be acting within the empowering law (rule of law) – simply put, they must have the power to enforce the limitation.
The High Court judgment: a blow to civil society
From a reading of the facts of the case, the Minister was not empowered by the Penal Code, on which he sought to rely, to order the cessation of the workshop. Also, he did not assert that he was indeed empowered by the Code. In simple terms, he was acting beyond the scope of his powers or ultra vires. Further, his actions did not follow due process: he did neither had a warrant or any other basis on which to order the cessation of the workshop, nor did he adduce evidence that the workshop posed an actual danger to the public interest.
The most disturbing aspect of the High Court’s decision is its equivocation of ‘morality’, without definition, with public interest.
One can see from a reading of the Supreme Court judgement that the limitation of a right on the basis of public interest is much narrower than the High Court assumes. The person seeking to uphold a limitation must demonstrate that the limitation is based on actual mischief or danger. Such danger is not derived from vague assumptions about the morality of the applicants. Further, it is important to note that the Ugandan Constitution, as interpreted by the Supreme Court, requires adherence to democratic principles such as due process and the rule of law in order for a limitation to be permissible.
The High Court case undoes the significant strides made in the protection of minority rights in Uganda. On the basis of this judgement, organisations working with vulnerable populations – who usually fall outside the law’s radar – are prevented from holding meetings and discussing the work they do. It means that womyn’s organisations working with issues on abortions and sex work – both of which are illegal in Uganda – cannot hold meetings to discuss and educate each other and their target populations. This judgement is a huge blow to civil society organising in Uganda.
Further reading: Muw Anga Kivumbi v Attorney General Constitutional Petition No 9 of 2005
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